SENATE, No. 2764

STATE OF NEW JERSEY

214th LEGISLATURE

 

INTRODUCED MARCH 10, 2011

 


 

Sponsored by:

Senator  SHIRLEY K. TURNER

District 15 (Mercer)

 

 

 

 

SYNOPSIS

     Amends eligibility for expungement of criminal records.

 

CURRENT VERSION OF TEXT

     As introduced.

  


An Act concerning expungement of criminal records and amending N.J.S.2C:52-2 and N.J.S.2C:52-7, and supplementing Title 52 of the New Jersey Statutes.

 

     Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

     1.    N.J.S.2C:52-2 is amended to read as follows:

     2C:52-2.  Indictable Offenses.

     a.     In all cases, except as herein provided, or as provided in section 3 of P.L.   , c.    (C.         )(pending before the Legislature as section 3 of this bill), wherein a person has been convicted of a crime under the laws of this State and who has not been convicted of any prior or subsequent crime, whether within this State or any other jurisdiction, and has not been adjudged a disorderly person or petty disorderly person on more than two occasions may, after the expiration of a period of 10 years from the date of his conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later, present a duly verified petition as provided in section 2C:52-7 to the Superior Court in the county in which the conviction was entered praying that such conviction and all records and information pertaining thereto be expunged.

     Notwithstanding the provisions of the preceding paragraph, a petition may be filed and presented, and the court may grant an expungement pursuant to this section, although less than 10 years has expired in accordance with the requirements of the preceding paragraph where the court finds:

     (1)   less than 10 years has expired from the satisfaction of a fine, but the 10-year time requirement is otherwise satisfied, and the court finds that the person substantially complied with any payment plan ordered pursuant to N.J.S.2C:46-1 et seq., or could not do so due to compelling circumstances affecting his ability to satisfy the fine; or

     (2)   at least five years has expired from the date of his conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later; the person has not been convicted of a crime, disorderly persons offense, or petty disorderly persons offense since the time of the conviction; and the court finds in its discretion that expungement is in the public interest, giving due consideration to the nature of the offense, and the applicant's character and conduct since conviction.

     In determining whether compelling circumstances exist for the purposes of paragraph (1) of this subsection, a court may consider the amount of the fine or fines imposed, the person's age at the time of the offense, the person's financial condition and other relevant circumstances regarding the person's ability to pay.

     Although subsequent convictions for no more than two disorderly or petty disorderly offenses shall not be an absolute bar to relief, the nature of those conviction or convictions and the circumstances surrounding them shall be considered by the court and may be a basis for denial of relief if they or either of them constitute a continuation of the type of unlawful activity embodied in the criminal conviction for which expungement is sought.

     b.    Records of conviction pursuant to statutes repealed by this Code for the crimes of murder, manslaughter, treason, anarchy, kidnapping, rape, forcible sodomy, arson, perjury, false swearing, robbery, embracery, or a conspiracy or any attempt to commit any of the foregoing, or aiding, assisting or concealing persons accused of the foregoing crimes, shall not be expunged.

     Records of conviction for the following crimes specified in the New Jersey Code of Criminal Justice shall not be subject to expungement: Section 2C:11-1 et seq. (Criminal Homicide), except death by auto as specified in section 2C:11-5; section 2C:13-1 (Kidnapping); section 2C:13-6 (Luring or Enticing); section 1 of P.L.2005, c.77 (C.2C:13-8) (Human Trafficking); section 2C:14-2 (Aggravated Sexual Assault); section 2C:14-3a (Aggravated Criminal Sexual Contact); if the victim is a minor, section 2C:14-3b (Criminal Sexual Contact); if the victim is a minor and the offender is not the parent of the victim, section 2C:13-2 (Criminal Restraint) or section 2C:13-3 (False Imprisonment); section 2C:15-1 (Robbery); section 2C:17-1 (Arson and Related Offenses); section 2C:24-4a. (Endangering the welfare of a child by engaging in sexual conduct which would impair or debauch the morals of the child); section 2C:24-4b(4) (Endangering the welfare of a child); section 2C:24-4b. (3) (Causing or permitting a child to engage in a prohibited sexual act); section 2C:24-4b.(5)(a) (Selling or manufacturing child pornography); section 2C:28-1 (Perjury); section 2C:28-2 (False Swearing); section 2C:34-1b.(4) (Knowingly promoting the prostitution of the actor's child); section 2 of P.L.2002, c.26 (C.2C:38-2) (Terrorism); subsection a. of section 3 of P.L.2002, c.26 (C.2C:38-3) (Producing or Possessing Chemical Weapons, Biological Agents or Nuclear or Radiological Devices); and conspiracies or attempts to commit such crimes.

     Records of conviction for any crime committed by a person holding any public office, position or employment, elective or appointive, under the government of this State or any agency or political subdivision thereof and any conspiracy or attempt to commit such a crime shall not be subject to expungement if the crime involved or touched such office, position or employment.

     c.     In the case of conviction for the sale or distribution of a controlled dangerous substance or possession thereof with intent to sell, expungement shall be denied except where the crimes involve: 

     (1)   Marijuana, where the total quantity sold, distributed or possessed with intent to sell was 25 grams or less;

     (2)   Hashish, where the total quantity sold, distributed or possessed with intent to sell was five grams or less; or

     (3)   Any controlled dangerous substance provided that the conviction is of the third or fourth degree, where the court finds that expungement is consistent with the public interest, giving due consideration to the nature of the offense and the petitioner's character and conduct since conviction.

     d.    In the case of a State licensed physician or podiatrist convicted of an offense involving drugs or alcohol or pursuant to section 14 or 15 of P.L.1989, c.300 (C.2C:21-20 or 2C:21-4.1), the court shall notify the State Board of Medical Examiners upon receipt of a petition for expungement of the conviction and records and information pertaining thereto.

(cf:  P.L.2009, c.188, s.1)

 

     2.    N.J.S.2C:52-7 is amended to read as follows:

2C:52-7.  Petition for Expungement.  Every petition for expungement filed pursuant to this chapter shall be verified and include:

     a.     Petitioner's date of birth.

     b.    Petitioner's date of arrest.

     c.     The statute or statutes and offense or offenses for which petitioner was  arrested and of which petitioner was convicted.

     d.    The original indictment, summons or complaint number.

     e.     Petitioner's date of conviction, or date of disposition of the matter if  no conviction resulted.

     f.     The court's disposition of the matter and the punishment imposed, if any.

     If a petition is for the expungement of more than one conviction pursuant to section 3 of P.L.   , c.    (C.         )(pending before the Legislature as this bill), the petition shall include the information set forth in this section for each conviction.

(cf: N.J.S.2C:52-7)

 

     3.    (New section)  a.  Notwithstanding the provisions of N.J.S.2C:52-2 to the contrary, pursuant to this section a person convicted of more than one crime of the third or fourth degree under the laws of this State may present a duly verified petition as provided in N.J.S.2C:52-7 and the court may grant an expungement for each conviction if the person has not been adjudged a disorderly person or petty disorderly person on more than two occasions, and has affirmatively demonstrated to the court clear and convincing evidence of rehabilitation.  In determining whether clear and convincing evidence of rehabilitation has been demonstrated, the court may consider the following factors:

     (1)   Nature and seriousness of the crimes;

     (2)   Circumstances under which the crimes occurred;

     (3)   Date of the crimes;

     (4)   Age of the person when the crimes were committed;

     (5)   Social conditions which may have contributed to the crimes; and

     (6)   Any evidence of rehabilitation, including good conduct in prison or the community, counseling or psychiatric treatment received, acquisition of additional academic or vocational schooling, successful participation in correctional work-release programs, or the recommendation of persons who have or have had the applicant under their supervision.

     Although subsequent convictions for no more than two disorderly or petty disorderly offenses shall not be an absolute bar to relief, the nature of the convictions and the circumstances surrounding them shall be considered by the court and may be a basis for denial of relief if they or either of them constitute a continuation of the type of unlawful activity embodied in the criminal convictions for which expungement is sought.

     b.    The provisions of this subsection shall not apply to a person convicted of a crime of the first or second degree, or a sex offense as defined in subsection b. of section 2 of P.L.1994, c.133 (C.2C:7-2).

 

     4.    This act shall take effect immediately.

 

 

STATEMENT

 

     This bill provides courts with the authority to grant an expungement in certain circumstances where an individual would otherwise be disqualified under current law.  As provided in N.J.S.2C:52-2, an individual may only be granted an expungement if he has not been convicted of more than one crime and has not been adjudged a disorderly person or petty disorderly person on more than two occasions.

     This bill grants certain individuals who have been convicted of more than one crime of the third or fourth degree the opportunity for expungement if it can demonstrated by clear and convincing evidence that the individual has been rehabilitated. In determining whether clear and convincing evidence of rehabilitation has been demonstrated, the court may consider the following factors:

     (1)   Nature and seriousness of the crimes;

     (2)   Circumstances under which the crimes occurred;

     (3)   Date of the crimes;

     (4)   Age of the person when the crimes were committed;

     (5)   Social conditions which may have contributed to the crimes; and

     (6)   Any evidence of rehabilitation, including good conduct in prison or the community, counseling or psychiatric treatment received, acquisition of additional academic or vocational schooling, successful participation in correctional work-release programs, or the recommendation of persons who have or have had the applicant under their supervision.

     This bill would not apply to an individual who has been convicted of a crime of the first or second degree, or a sex offense as defined in subsection b. of N.J.S.2C:7-2.